Differentiation of responsibility for smuggling under Article 229.1 of the Criminal Code of the Russian Federation and prospects for its optimization

Sil'chenko Elena Vladimirovna PhD in Law Associate Professor; Department of Criminal Law and Criminology; Kuban State University Stavropol str., 149, Krasnodar territory, 350040, Russia Adrred_tin@bk.ru

Derbok Zaira Gissovna PhD in Law Associate Professor; Department of Criminal Law and Criminology; Kuban State University Stavropol str., 149, Krasnodar territory, 350040, Russia Zaira_111@mail.ru

The issues of differentiation of criminal responsibility are among the most prominent in modern Russian criminal law. Acting as a "cornerstone" in solving many problems, differentiation is, on the one hand, a means of ensuring the implementation of criminal law principles, on the other, a guarantee of ensuring fair consideration of each individual criminal case ^{[15, p. 239]}.

Today, it is in demand to study the differentiation of criminal liability for crimes against public health and public morals, the normative regulation of which in Chapter 25 of the Criminal Code of the Russian Federation (hereinafter referred to as the Criminal Code of the Russian Federation) has recently undergone significant changes, while simultaneously following the vector of mitigation and strengthening of responsibility for individual criminal offenses. Thus, in accordance with Federal Law No. 420-FZ of December 7, 2011, this chapter was supplemented by Article 229.1 of the Criminal Code of the Russian Federation, which provided for liability for smuggling narcotic drugs, psychotropic substances, their precursors or analogues, plants containing them (or parts) (hereinafter referred to as drugs), tools or equipment that They are under special control and are used to manufacture drugs. This criminal prohibition on the smuggling of drug-related items was moved from the pre-existing Article 188 of the Criminal Code ("Contraband") ^{[15, p. 36]}, which contains only three qualifying signs, when currently there are seven such regulated in Article 229.1 of the Criminal Code. As is known, qualifying signs are special means of differentiating criminal liability ^{[2, p. 85]}, their expansion, in this case, is associated with the gradation of the drug smuggling object depending on the size (significant, large and especially large), as well as the appearance of such an aggravating circumstance as the commission of smuggling by a group of persons by prior agreement. In general, this corresponds to the proper course of combating crime, since the statistical indicator of registered crimes under Article 229.1 of the Criminal Code of the Russian Federation is growing: according to the Main Information and Analytical Center of the Ministry of Internal Affairs of Russia (hereinafter referred to as the GIAC of the Ministry of Internal Affairs of Russia), 378 cases of drug smuggling were registered in January-December 2024, which is 37.5% more than the indicator last year.

The topic of differentiation of criminal liability for drug smuggling in the science of criminal law is well developed. Some issues of this field were discussed at the level of dissertations, individual monographic studies and scientific articles by such scientists as E.S. Vitovskaya ^[3], Yu.A. Gudkov ^[5], A.I. Korobeev ^[9], A.Ya. Kromova ^[10], M.R. Potashov ^[13], A.A. Sergeeva ^[16], N.V. Shchetinina ^[18] and others. At the same time, there is currently no comprehensive (theoretical and legal) study of the designated topic, which would be based on the norms of current Russian criminal legislation.

In order to ensure the completeness and accuracy of the conducted research, the work uses scientific works of scientists in the field of criminal law, materials from the published judicial practice of the Supreme Court of the Russian Federation and courts of general jurisdiction, statistical information on the state of crime provided by the GIAC of the Ministry of Internal Affairs of Russia, a complex of general scientific and private scientific methods of scientific knowledge is involved: analysis, synthesis, system-structural, formal-legal and logical.

Despite the fact that since the appearance of Article 229.1 in the Russian criminal law in 2011, none of its differentiating features (Parts 2-4) have been adjusted, their system still cannot be considered completely perfect. It seems advisable, from a theoretical point of view and from the perspective of identifying prospects for further optimization, to consider in more detail the most interesting of them.

So, the qualifying signs of the first degree are the commission of drug smuggling by a group of persons by prior agreement, by an official using his official position and in relation to drugs on a significant scale.

Since the first of these features is sufficiently developed in the doctrine ^{[13; 9]}, it is advisable to highlight only the problematic aspects related to its qualification. The first of these is the smuggling of drugs through international mail. This issue was raised in detail in a special work by M.A. Lyubavina, but in general it has been little studied in science, and judicial practice is quite contradictory in this area ^{[11, p. 78]}. In particular, the stated problematic aspect concerns the answer to the following question: how, from a criminal legal point of view, to qualify the act of the recipient and sender of the postal shipment? Are they co-perpetrators of drug smuggling, or is the sender the only perpetrator? If these defendants are recognized as co-executors, then their act must be qualified on the basis of the commission of a crime by a group of persons by prior agreement. However, if the sender is recognized as the executor alone, then qualification on this basis will be impossible, which will lead to bringing this subject to justice with reference to art. 33 of the Criminal Code of the Russian Federation.

If we refer to paragraph 15 of Resolution No. 12 of the Plenum of the Supreme Court of the Russian Federation dated April 27, 2017 (hereinafter referred to as RF Supreme Court Resolution No. 12 dated April 27, 2017), we can see an explanation in this regard. Thus, it notes that the recipient of contraband items by international shipment, if he has searched for, placed an order for them, paid for them, provided his personal information, provided ways to receive and (or) conceal the goods he ordered, is liable as the person who directly committed the crime (the perpetrator). However, this recommendation seems to be contradictory.

Thus, the objective side of smuggling under Article 229.1 of the Criminal Code of the Russian Federation consists of actions for the direct (illegal) "movement" of drugs and other criminal items across the customs border of the Eurasian Economic Union (hereinafter referred to as the EAEU) or the state border of Russia with the EAEU member states. That is, a physical change in the location of the contraband item is carried out.

In accordance with paragraph 27 of Part 1 of Article 2 of the EAEU Customs Code (hereinafter referred to as the EAEU Customs Code), the movement of goods across the customs border means their importation into or export from the territory of the Customs Union. In turn, in paragraph 3 of Part 1 of Article 2 of this legal act, the importation of goods into the territory of the Customs Union is understood as the commission of actions to cross the customs border of the Union, as a result of which the goods arrived at the customs territory by any means, including through international mail, until the release of these goods by customs authorities.

Based on the provisions of the EAEU Customs Code, it becomes obvious that the international mailing of drugs is one of the ways of their smuggling. The latter, carried out by international shipment, begins from the moment the goods are delivered to the mail by the sender and ends at the moment of their arrival in the territory of the Customs Union.

Thus, the actions described in paragraph 15 of the RF Supreme Court of April 27, 2017 No. 12 (searching for drugs, ordering them, paying for them, providing their personal data, etc.) are not included in the objective side of drug smuggling, since the recipient of an international postal item does not act to directly move or change the location of the contraband item. in space. This situation creates a contradiction between the provisions of the criminal law and the act of the highest judicial instance.

In our opinion, a person who is the recipient of an international postal item cannot be recognized as a co-perpetrator of smuggling. It seems that such a recipient acts as an accomplice to a crime, namely, an accomplice, since he facilitates the movement of drugs, which leads to the qualification of his actions under art. 229.1 of the Criminal Code of the Russian Federation with reference to Part 5 of art. 33 of the Criminal Code. This position is also supported in the science of criminal law ^{[11, p. 84]}.

Equally difficult is the resolution of the issue related to the qualification of drug smuggling in terms of its commission by a group of persons by prior agreement, when one of its perpetrators is such a special subject of crime as an official. In this regard, a suitable example is modeled by M.A. Lyubavina, presenting a situation when a customs official, being in a preliminary conspiracy with a person illegally transporting a drug across the customs border, ensures its concealment from control during the inspection, i.e. intentionally does not notice ^{[11, p. 84]}. In fact, both persons are directly involved in the realization of the objective side of smuggling. However, based on Part 4 of Article 34 of the Criminal Code of the Russian Federation, if a person was not the subject of a crime specified in the article of the Special Part of the Criminal Code of the Russian Federation, but participated in its commission, he is liable for this criminal act as an organizer, instigator or accomplice. Based on this, the actions of an official involved in drug smuggling should be qualified as the actions of the perpetrator of this crime under paragraph "b" of Part 2 of Article 229.1 of the Criminal Code of the Russian Federation, since in this provision he is listed as a special subject of the crime. In turn, the actions of the second person should be qualified as the actions of an accomplice in the commission of smuggling by an official using his official position under Part 5 of art. 33, paragraph "b" of Part 2 of art. 229.1 of the Criminal Code of the Russian Federation. This situation precludes the use of the qualifying term "group of persons by prior agreement", since only one person acts as the perpetrator of drug smuggling.

Also of particular interest is the second feature related to the special subject of the crime – an official using his official position. First of all, attention is drawn to the unjustified narrowing of the possibilities of this trait, which seems to affect its preventive and protective potential. In particular, by designating the figure of an official in paragraph "b" of Part 2 of Article 229.1 of the Criminal Code of the Russian Federation, the legislator de jure limited the possibility of drug smuggling by another person (who is not an official) using his official activities. As A.A. Karapetyan correctly notes, a person engaged in official activities is an employee, which category includes officials, i.e. the latter are a type of employee. Employees are a generic concept in relation to officials, their list is open ^{[14, p. 9]}, which cannot be noted in relation to the latter, based on the concept regulated in note 1 to art. 285 of the Criminal Code of the Russian Federation. For example, in Article 226.1 of the Criminal Code of the Russian Federation, which provides for liability for smuggling of other special items, in paragraph "a" of Part 2, a qualifying feature of committing an act by a person using his official position is fixed. A similar feature is contained in paragraph "b" of Part 2 of p. 229 of the Criminal Code of the Russian Federation, which establishes a ban on the theft or extortion of drugs. Paragraph 23 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 15, 2006 No. 14 "On Judicial Practice in cases of crimes related to narcotic drugs, psychotropic, potent and poisonous substances" clarifies that a person using his official position should include both an official and a person who, in carrying out his duties, He is involved in his work functions, comes into contact with drugs (for example, a laboratory assistant (in the manufacture of medicines), a pharmacy employee (when prescribing medicines), a security guard, a freight forwarder (during protection), etc.). In this regard, it is impossible to exclude situations in which persons using their official position may commit smuggling without having a specific position.. For this reason, and in order to bring uniformity to the provisions of the criminal law, paragraph "b" of Part 2 of Article 229.1 of the Criminal Code of the Russian Federation should be worded as follows: "by a person using his official position."

As previously noted, the legislator differentiated the size of drug smuggling into significant (paragraph "c" of Part 2 of Article 229.1 of the Criminal Code), large (qualifying feature of the II degree – part 3 of Article 229.1 of the Criminal Code) and especially large (qualifying feature of the III degree – paragraph "b" of part 4 of Article 229.1 of the Criminal Code). They are defined, inter alia, for the purposes of Article 229.1 of the Criminal Code of the Russian Federation, by Resolutions of the Government of the Russian Federation No. 1002 dated October 1, 2012 and No. 1020 dated October 8, 2012, as described in notes 2 to Articles 228 and 228.3 of the Criminal Code of the Russian Federation. The only thing worth mentioning here is that the contraband item of narcotic drugs, psychotropic substances, their analogues, plants (parts thereof) containing drugs, depending on its weight, is divided into significant, large and especially large sizes, and its item in the form of drug precursors is divided only into large and especially large sizes.

The qualifying signs of the III degree, in addition to the previously indicated, include: the commission of smuggling by an organized group and with the use of violence against a person exercising customs or border control ^[12].

The first of the above-mentioned differentiating features is elaborated in detail in the doctrine of criminal law, therefore, there is no expediency in characterizing its features. Special attention is drawn to the second feature, from the wording of which it is not entirely clear what kind of violence we are talking about: physical and (or) mental. So, at the moment, the decree of the Plenum of the Supreme Court of the Russian Federation of May 27, 2008 No. 6 "On judicial practice in cases of smuggling", which has become invalid, but which was in force almost 7 years ago, clarified that within the framework of paragraph "b" of Part 3 of Article 188 of the Criminal Code of the Russian Federation, smuggling involves any physical impact (for example, by binding, by blows). Unfortunately, in the newly adopted eponymous RF Supreme Court Resolution No. 12 of April 27, 2017 does not provide explanations in this regard. This gap is being filled in the doctrine. Thus, according to L.Y. Rodina, physical violence is the only indicator that has criminal significance for the considered feature ^{[14, p. 155]}. A number of authors argue that since the sign of smuggling "with the use of violence against a person exercising customs control" is not accompanied by the phrase "as well as with the threat of its use," it is logical that only physical violence is implied. But mental violence is no less effective way of influencing the victim, besides, it is used more often (by threatening to use weapons, hypnosis, dissemination of various kinds of information, etc.) than physical violence ^{[1, p. 94; 4]}.

Based on the above, paragraph "b" of Part 4 of Article 229.1 of the Criminal Code of the Russian Federation should be stated as follows: "with the use of violence against a person exercising customs or border control, or with the threat of such violence."

Regarding the establishment of responsibility for the commission of certain acts, in the science of criminal law it is proposed to criminalize drug smuggling for the purpose of their subsequent sale by supplementing Part 3 of art. 229.1 of the Criminal Code of the Russian Federation with an appropriate qualifying feature ^{[17, p. 41]}. We believe that we should agree with this opinion, since the introduction of criminal liability for drug smuggling with a view to their subsequent sale will play a key role in the fight against organized crime. Firstly, it will create a strong economic incentive for criminal groups to abandon this type of activity. In addition, their financial component may significantly weaken due to a decrease in the possibility of financing other types of criminal activities (extortion, murder, corruption, etc.). Secondly, it will help to identify the logistics chains of criminal groups and destroy the network links between different links of organized crime, because drug smuggling often involves complex transportation and distribution schemes involving many different criminal structures.

In one case, there may not be any intent to sell the product. Thus, the Khimki City Court, in a verdict dated July 30, 2024 in case No. 1-620/2024, established that a certain A. had committed drug smuggling, i.e. illegal movement across the customs border of the EAEU Customs Union of a cupcake purchased in the Kingdom of Thailand, which contained tetrahydrocannabinol, without the purpose of selling for his own consumption. However, it is common for such intent to be pursued.

The following materials of published judicial practice serve as confirmation of the need for the above-mentioned criminalization. Thus, the verdict of the Sovetsky District Court of Krasnodar dated April 6, 2016 No. 1-256/2017 established that S.S. Mirzoev, found guilty under paragraph "b" of Part 4 of Article 229.1 of the Criminal Code and Part 3 of Article 30, Part 5 of Article 228.1 of the Criminal Code, in November 2016, being in a preliminary conspiracy with by another person about the joint commission of drug smuggling, acquired a narcotic drug from the latter for its subsequent movement across the customs border of the Customs Union and further sale.

Another example is the verdict of the Pskov Regional Court of December 18, 2023 in case No. 2-10/2023, in which N. was found guilty of large-scale drug smuggling and attempted sale. The court found that the drugs had been packaged, packaged and placed in the fuel tank of a passenger car for their subsequent movement across the border for sale on the territory of the Russian Federation.

In the verdict of the Sovetsky District Court of Krasnoyarsk dated January 19, 2017 No. 1-104/2017, the court found that Bozorov B.D., while in the Republic of Tajikistan, purchased heroin from an unidentified person, who subsequently hid it in a pile of garbage for storage, along with money for the purchase of an airline ticket. Returning to the city of Krasnoyarsk, Bozorov B.D., via mobile communication, contacted a person living in Tajikistan through his "principal" with a proposal to transport previously purchased heroin from the Republic to the territory of Russia for its subsequent sale. To which the performer agreed. Thus, B.D. Bozorov, acting as part of a group of individuals, created all the necessary conditions for the illegal sale of heroin on a large scale on the territory of the Russian Federation.

Thus, as a result of studying the differentiation of responsibility for smuggling within the framework of art. 229.1 of the Criminal Code of the Russian Federation, it is possible to summarize in the context of determining the prospects for its optimization.

1. Due to the fact that it is impossible to exclude situations in which persons using their official position may commit smuggling without having a specific position and in order to unify the provisions of the criminal law, a new version of paragraph "b" of Part 2 of art. 229.1 of the Criminal Code is proposed.

2. Based on the uncertainty that arises when determining the type of violence within the framework of clause "b" of Part 4 of Article 229.1 of the Criminal Code of the Russian Federation (physical and (or) mental), a new version of this norm is proposed.

3. The idea of supplementing Part 3 of Article 229.1 of the Criminal Code of the Russian Federation with a new qualifying feature is supported: "for marketing purposes."

The introduction of criminal liability for drug smuggling with a view to their subsequent sale will help to destroy the logistics chains of criminal activity, weaken organized criminal groups, reduce their material potential and disrupt internal criminal interaction between their members.